http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (crl.)  204 of 2003

PETITIONER: Ram Bali                                                 

RESPONDENT: State of Uttar Pradesh                                   

DATE OF JUDGMENT: 16/04/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T  

ARIJIT PASAYAT,J

       A Division Bench of the Allahabad High Court by the  impugned judgment upheld the conviction recorded by  learned Special Judge, Hamirpur holding appellant guilty  of offence punishable under Section 302 of the Indian  Penal Code 1860 (in short ’IPC). Accused-appellant was  sentenced to undergo imprisonment for life.  However,  co-accused Rajendra Singh  was acquitted.   

Background facts which led to trial are as follows:

       Complainant-Ram Singh (PW-1) at the time of  occurrence was living at village Swasa.  On 20.7.82 at  about 6.00 p.m. when he was returning to his village   Pyare Singh (PW-2), a co-villager was also with him.  On  the way his brother Prem Singh (hereinafter referred to  as the ’deceased’) who was living at village Chhani met  him.  They came to the bus stop and sat at the Chabutra  in front of the Dak Bungalow and waited for the bus.  At  that time a bus came from Hamirpur. Appellant-Rambali  Singh (A-1) and Rajendra Singh (A-2) residents of  village Chhani Bujurg got down from that bus.

       Accused Rambali had a double barrel gun in his hand  and a single barrel gun was in the hands of the  acquitted accused Rajendra Singh.  After that they went  to a nearby betel shop.  From there they came and stood  in front of them and said to his brother, the deceased  "Dishonest: should we kill you".  At that time Rambali  fired from his double barrel gun and killed the deceased  who died at the spot. The complainant and others  raised  alarm and the accused ran away towards the village  hospital.  There was enmity between the family members  of the complainant and accused Rambali Singh due to  litigations and for that reason the accused persons had  assassinated the deceased-Prem Singh.  Many villagers  were present there at the time of occurrence. The  occurrence report was drafted by Ram Kishan Gupta under  the instruction of complainant, registered as FIR and   is Exhibit Ka-1. After FIR was lodged, investigation was  undertaken.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

       On completion of investigation charge-sheet was  placed and matter was taken up for trial after framing  charges. Six witnesses were examined to further the  prosecution case. Out of six witnesses examined, PWs 1  and 2 were stated to be the eye-witnesses to the  occurrence. The accused who pleaded innocence did not  examine any witness. They took the plea that the  complainant was not present at the site of the  occurrence as alleged to have happened.  One Ram Kishan  Gupta had called him from his village Swasa on  motorcycle. The Trial Court accepted the version of PWs  1 and 2 as a correct reflection of what had happened and  placing reliance on their evidence directed conviction.  But, as noted above, co-accused Rajendra was acquitted  by the High Court.

       In support of the appeal, learned counsel for the  accused-appellant submitted that the High Court has not  elaborately analysed the evidence and has cryptically  disposed of the appeal.  Medical evidence was clearly at  variance with the ocular evidence and, therefore, both  the Trial Court and the High Court had fallen into grave  error by placing reliance on the evidence of PWs 1 and  2. Though the accused allegedly used a gun, it was not  sent for forensic testing. Evidence on record  establishes that the village was a dacoit infested, for   which police patrolling just before the alleged incident  took place.  A Constable (PW-5) had gone to the village,  but nobody reported anything to him. PW-2 had stated  that the deceased had taken lunch at about 2.00 p.m.  When the doctor conducted post-mortem he found that the  stomach was empty. With reference to the textbook  "Medical Jurisprudence and Toxicology" by HWV Cox, it  was pointed out that at least six hours are needed for  the food to get completely digested. Medical evidence,  therefore, probabilises the defence version that some  incident took place around 9.00 p.m. Though the distance  of the alleged place of occurrence from the police  station is about 8 Kms., FIR was lodged at the Binwar  police station around 9.30 p.m. It has been accepted  that it would have hardly taken half an hour by bus or  motorcycle to reach the police station. The doctor’s  view noted in the post-mortem regarding rigor mortis  also improbabilises the time of occurrence as alleged.   Therefore, PWs 1 and 2 cannot be truthful witnesses.  This is a case where the High Court’s judgment is not  maintainable because there was no proper appraisal of  the evidence in the background of submissions made by  the accused-appellant. As there is perversity in  appreciation and want of care and caution required for  examining truthfulness of related witnesses’ version,  both the Trial Court’s and the High Court’s judgment  become vulnerable.  Though the presence of several  others has been accepted, no reason has been given for  their non-examination. Finally, it is submitted that the  judgment was delivered long after the hearing was closed  and, therefore, the arguments made before the High Court  have not been properly considered. Reference was made to  a decision in Anil Rai v. State of Bihar (2001 (7) SCC  318) to contend that the judgment should be set aside  and the matter remitted to the High Court for fresh  consideration. The appellant had taken specific plea  that on the concerned date he had gone to jail for the  purpose of identification and was not present. Three  witnesses were examined to substantiate the plea that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

the accused-appellant was not present at the time of  incident. It was submitted that the plea of alibi set up  by the accused-appellant has been erroneously brushed  aside without any reasonable basis.

       In response, learned counsel for the State  supported the judgments of the Courts below and urged  that the evidence have been critically examined in the  proper perspective and there is no infirmity to warrant  any interference to the concurrent findings recorded by  the Courts below so far as the guilt of the accused is  concerned.

Learned counsel for the respondent submitted that  the discrepancy between the ocular version and the  medical evidence was not even pleaded before the High  Court.  The plea relating to belated delivery of  judgment cannot according to the respondent be pressed  into service.

       At the outset, it is to be noted that before the  High Court only two points were said to have been urged.   They are as follows:

(1)     No witness has witnessed the incident and the  accused have been falsely implicated because of  enmity. (2)     The accused Ram Bali Singh went to jail on  20.7.1982 for identification and he was not  present at the time of incident.

       We notice that the High Court specifically records  that only two points were urged before it. It has to be  noted that the statement of as to what transpired at the  hearing, the record in the judgment of the Court are  conclusive of the facts so stated and no one can  contradict such statement on affidavit or by other  evidence. If a party thinks that the happenings in Court  have been erroneously recorded in a judgment, it is  incumbent upon the party, while the matter is still  fresh in the minds of the Judges who have made record to  make necessary rectification.  That is only way to have  the record corrected.  It is not open to the appellant  to contend before this Court to the contrary. (See State  of Maharashtra v. Ramdas Shrinivas Nayak and Anr. (1982  (2) SCC 463), Bhavnagar University v. Palitana Sugar  Mill (P) Ltd. and Ors. (2003 (2) SCC 111), and Roop  Kumar v. Mohan Thedani (2003 (6) SCC 595).

       Even otherwise, the plea that the medical evidence  is contrary to the ocular evidence has also no  substance.  It is merely based on the purported opinion  expressed by an author. Hypothetical answers given to  hypothetical questions, and mere hypothetical and  abstract opinions by textbook writers, on assumed facts,  cannot dilute evidentiary value of ocular evidence if it  is credible and cogent.  The time taken normally for  digesting of food would also depend upon the quality and  quantity of food as well, besides others. It was  required to be factually proved as to the quantum of  food that was taken, atmospheric conditions and such  other relevant factors to throw doubt about the  correctness of time of occurrence as stated by the  witnesses.  Only when the ocular evidence is wholly  inconsistent with the medical evidence the Court has to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

consider the effect thereof.  This Court in Pattipati  Venkaiah v. State of Andhra Pradesh (AIR 1985 SC 1715)  observed that medical science is not yet so perfect as  to determine the exact time of death nor can the same be  determined in a computerised or mathematical fashion so  as to be accurate to the last second. The state of the  contents of the stomach found at the time of medical  examination is not a safe guide for determining the time  of occurrence because that would be a matter of  speculation, in the absence of reliable evidence on the  question as to when exactly the deceased had his last  meal and what that meal consisted of.  In Nihal Singh  and Ors. v. The State of Punjab (AIR 1965 SC 26), it was  indicated that the time required for digestion may  depend upon the nature of the food. The time also varies  according to the digestive capacity. The process of  digestion is not uniform and varies from individual to  individual and the health of a person at a particular  time and so many other varying factors.   

       Factors were also noted by HWV Cox in his book  referred to by learned counsel for the appellant. (See  Seventh Edition, at pages 300 to 302). An author’s view  which is opinion based on certain basic assumptions only  cannot be a substitute for evidence let in to prove a  fact - which invariably depends upon varied facts, and  according to the peculiar nature of a particular case on  hand. The only inevitable conclusion is that the plea is  without any substance, apart from the fact that the said  plea pertaining to mere appreciation of facts was not  raised before the High Court.   

The investigation was also stated to be defective  since the gun was not sent for forensic test. In the  case of a defective investigation the Court has to be  circumspect in evaluating the evidence. But it would not  be right in acquitting an accused person solely on  account of the defect; to do so would tantamount to  playing into the hands of the investigating officer if  the investigation is designedly defective. (See Karnel  Singh v. State of M.P. (1995 (5) SCC 518).  

       In Paras Yadav and Ors. v. State of Bihar (1999 (2)  SCC 126) it was held that if the lapse or omission is  committed by the investigating agency or because of  negligence there had been defective investigation the  prosecution evidence is required to be examined de hors  such omissions carefully to find out whether the said  evidence is reliable or not and to what extent, such  lapse affected the object of finding out the truth. The  contaminated conduct of officials alone should not stand  on the way of evaluating the evidence by the courts in  finding out the truth, if the materials on record are  otherwise credible and truthful; otherwise the designed  mischief at the instance of biased or interested  investigator would be perpetuated and justice would be  denied to the complainant party, and in the process to  the community at large.  

       As was observed in Ram Bihari Yadav v. State of  Bihar and Ors. (1998 (4) SCC 517) if primacy is given to  such designed or negligent investigation, to the  omission or lapses by perfunctory investigation or  omissions, the faith and confidence of the people would  be shaken not only in the Law enforcing agency but also

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

in the administration of justice. The view was again re- iterated in Amar Singh v. Balwinder Singh and Ors. (2003  (2) SCC 518). As noted in Amar Singh’s case (supra) it  would have been certainly better if the firearms were  sent to the forensic test laboratory for comparison. But  the report of the ballistic expert would merely be in  the nature of an expert opinion without any  conclusiveness attached to it. When the direct testimony  of the eye-witnesses corroborated by the medical  evidence fully establishes the prosecution version,  failure or omission or negligence on the part of the IO  cannot affect credibility of the prosecution version.                   It has been explained by the prosecution as to why  there was some delay in lodging the FIR. It has been  categorically stated that there was no bus available  and, therefore, it could be only done when the bus was  available.  The question was not raised before the High  Court and apart from that, explanation offered appears  to be plausible, in the absence of any material to the  contrary.    

Another plea which was emphasised related to non- examination of alleged eye-witnesses. This plea was also  not pressed before the High Court.      In any event, the    investigating officer and the witnesses have been  examined to explain the reason as to why the others were  not examined and nothing has been brought on record to  discredit those claims. The Trial Court has also  analysed this aspect and found no substance in the plea  of the accused.  

The plea relating to alleged absence was examined  by the Trial Court and the High Court. It was noticed  that no material was produced to show that at the point  of time, when the occurrence took place, accused- appellant was present in the jail for the purpose of  identification. We find no infirmity in the conclusions  of the Courts below in rejecting the plea of alibi.   

We also find that the plea of delayed delivery of  judgment and the same rendering it vulnerable is without  any substance.  In Anil Rai’s case (supra) this Court has  only stressed upon the desirability of early delivery of  judgments.  In fact, the judgment impugned before this  Court in the said case was not set-aside on the ground  of delayed delivery of judgment and was dealt on merits.   In paras 10 and 45 of the judgment this Court had  indicated options to a party in case judgment is not  delivered for considerably long time. We are unable to  appreciate that any detriment as such was caused to the  appellant on that account alone, on the peculiar facts  of the case, as well.

There is no scope for reappraisal of evidence and  interference with the concurrent findings of fact.  This  Court is not ordinarily to go into the credibility of  the findings and interference is permissible only when  exceptional and special circumstances exist which  resulted in injustice to the accused.  This is not a  case of that nature and the evidence seems to be not  only creditworthy but the conclusions arrived at also  are well merited and sufficiently supported by  overwhelming material on record. We, therefore, find no  merit in this appeal, which is dismissed.                    

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6